2010 ALL MR (Cri) 3443
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. BHANGALE, J.

Atul S/O. Baburao Mandale Vs. State Of Maharashtra

Criminal Appeal No.36 of 2009

6th September, 2010

Petitioner Counsel: Mr. HARSHAL BOBDE
Respondent Counsel: Mr. ANUP PARIHAR

(A) Penal Code (1860), S.376 - Sentence - Rape case - Merely young age of accused cannot be considered as special and adequate reason to award lesser sentence for offence of rape. (Para 8)

(B) Penal Code (1860), S.376 - Rape case - Absence of semen on clothes of prosecutrix - Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case. AIR 1989 SC 701 - Rel. on. (Para 7)

Cases Cited:
State of Maharashtra Vs. Dadarao Jivtode, 2006 ALL MR (Cri) 735 [Para 4]
Bibhishan Vs. State of Maharashtra, (2008)3 SCC (Cri.) 163 [Para 4]
Shri. Bodhisatva Gautam Vs. Miss. Subhadra Chakraborty, AIR 1996 SC 922 [Para 5]
Omprakash Vs. State of U.P., 2006 Cri.L.J. 2913 [Para 5]
Prithi Chand Vs. State of Himachal Pradesh, AIR 1989 SC 701 [Para 7]


JUDGMENT

JUDGMENT :- The appellant is challenging the judgment and order dated 10.10.2009 in Sessions Case No.102/2007 decided by the learned Sessions Judge, Chandrapur who was pleased to convict the appellant/accused for offence punishable under section 376 of the Indian Penal Code (in short "IPC") and sentenced him to suffer RI for a period of seven years and fine of Rs.3,000/- in default, to undergo further RI for six months. In addition, the appellant was also found guilty for offence punishable under section 323, IPC and sentenced to suffer RI for one year ; and also for offence punishable under section 506, Part-II and sentenced to suffer RI for five years and fine in the sum of Rs.1,000/- in default, RI for six months, with direction that sentences to run concurrently.

2. The prosecution case in brief is that :

Prosecutrix aged about 17 years, was residing with her parents and younger sister Laxmi at Kantapeth Mul, Dist.-Chandrpaur. Since the appellant also hails from the same village, he was known to her. On 29.3.2007 at about 8.00 p.m. when the prosecutrix proceeded to answer nature's call, she noticed the appellant standing at the Pan kisok of Kashinath Sopankar. While prosecutrix sat to ease herself, the appellant came near the prosecutrix. According to her, there was moonlight at that time; and all of sudden the appellant came, caught hold her hands and said that he wanted to have sex with her and started pulling her under threat that if she will shout, he would kill her. He had also pressed her neck so that she did not shout. The appellant took her to the other part of the field where she had gone to answer nature's call and behind the compound bushes, forcibly removed her salwar and knicker and committed sexual intercourse with her. During the incident her bangles were broken and she had received abrasion on her body including her breasts. In the meantime, her younger sister happened to come at that place and seeing them, went to inform her father. Thereafter father of the prosecutrix accompanied with younger sister and her sister's husband, by name Prashant, came there, caught hold of the appellant and took him to the village. The prosecutrix then proceeded to Police Station along with her father and her sister's husband Prashant and lodged FIR (Exh.26), recorded by Head Constable Anandrao Bhagat (PW-5) on 30th March, 2007. Thus the crime was reported as No.43/2007 under sections 376, 506 and 323, IPC. The prosecutrix was referred to medical examination along with requisition letter (Exh.37). The investigation followed by Shri. Mule Police Inspector (PW 6) who was attached to Mul Police Station who visited the spot and drawn spot-panchanama (Exh.59). Thus, the appellant was arrested on 30.3.2007 under Arrest memo (Exh.63); his clothes were seized under Panchanama (Exh.33) and was referred for medical examination at Rural Hospital, Mul along with requisition letter Exh.41; whereas the medical certificate was issued as per Exh.41-A. Clothes of the prosecutrix were also seized under Panchanama Exh.28. Muddemal articles were referred to C.A. with forwarding letter (Exh.48); pursuant to which three C.A. reports (Exh.64 collectively) were received. The accused was charge-sheeted before the learned Judicial Magistrate, First Class on 18.9.2007 and was committed to the Court of Sessions on 9.10.2007. The trial Court framed charge against the appellant, to which the appellant pleaded not guilty and claimed to be tried. The prosecution examined as many as six witnesses and closed its case. The trial Court upon evidence led, proceeded to pass the order of conviction and sentence, as stated supra.

3. Learned Advocate appearing on behalf of the appellant in support of the appeal, vehemently submitted that the appellant ought to have been granted benefit of doubt on the ground that on the clothes of the prosecutrix semen stains were absent. According to him, had the prosecutrix been raped as stated by her, traces of semen would have been found on her clothes. It is further contended that according to the prosecutrix her sister had came at the scene of the incident and then returned back to call her father, who along with his son-in-law came there; but she was not examined as prosecution witness and, therefore adverse inference ought to have drawn against the case of the prosecution for non-examination of the sister of the prosecutrix, who was material witness.

4. Learned Advocate for the appellant relied upon the ruling in State of Maharashtra Vs. Dadarao Jivtode and others reported in 2006 ALL MR (Cri) 735, in order to submit that if incriminating articles were sent to Forensic Science laboratory and it is found that no semen stains on victim's garment or vaginal swab were there; or if under garments of the accused do not have stains or any body fluid of the victim, then in such a case, the benefit of doubt can be granted to the accused. It appears that the case relied upon by the learned Advocate for the appellant relates to an appeal against acquittal of six persons who were prosecuted for gang rape and in the concluding paragraph, the Division Bench of this Court had observed that it is a settled principle of law that when two views of a matter are possible and the trial Judge takes one view, it would not be open for an appellate Court to upset such findings because the Appellate Court on appreciation of evidence, could have come to another conclusion. The settled legal principle to my mind, is on account of the fact that the learned trial Judge has additional benefit to see witnesses deposing before him and do observe their demeanour while deposing in a particular manner. The contention that there were no semen stains on victim's garment or vaginal swab or the under garment of the accused do not have any body fluid of the victim, such findings by the Expert may have its own value in the light of the facts and evidence before the court which is required to be considered. Learned Advocate for the appellant, further, relied upon the ruling in Bibhishan Vs. State of Maharashtra, (2008)3 SCC (Cri.) 163 to argue that when medical evidence showing absence of any injury on the body or any sign of semen on private part of the prosecutrix, her clothes were not torn, nor there was any presence of hair of the accused on the private part of the prosecutrix, the doctor had opined upon examination of prosecutrix that she was habituated to sexual intercourse, the benefit of doubt was given to the appellant in that case, who was facing charges under section 376 read with section 511 of IPC. In my opinion, in a criminal law every case turn on its own facts and every case is required to be decided on the basis of evidence led before the Court.

5. Learned APP, on the other hand, with a vigour, supported the judgment and order passed by the trial Court on the ground that the learned trial Judge did consider the view of the Apex Court in Shri. Bodhisatva Gautam Vs. Miss Subhadra Chakraborty, AIR 1996 SC 922 about appreciation of evidence of prosecutrix in trial for offence of rape as also noted down settled principles of law to appreciate the evidence of prosecutrix as stated in Omprakash Vs. State of U.P., 2006 Cri.L.J. 2913 and submitted that the evidence of the prosecutrix is needed to be appreciated like an injured witness in criminal trial whose evidence cannot be brushed aside lightly. According to learned APP the learned trial Judge examined the evidence of the prosecutrix, medical evidence, CA reports and other corroborating evidence on record to arrive at conclusion in paragraph 37 of the impugned judgment and order which, according to him, was correct in the facts and circumstances of the case.

6. I have also perused the depositions on record. The prosecutrix was examined as PW-1. It appears from her evidence that she is aged about 17 years and studied up to X standard in Mahatma Jyotiba Phule School at Gadchirolli. She was in know of the appellant as he hails from her village. On 29.3.2009 at about 8.00 p.m. she went to answer nature's call in the field of one Pravin Pendor; the accused had followed her and while she was sitting to ease herself, he came there; she got up and questioned him as to why he came. The appellant accused insisted to have carnal pleasure saying that ucne lgPÈemfyl kec kjeÈ¢s De|s¿ and saying so, by threatening that if she shouts he will kill her, started pressing her neck. Then he lifted her to other part of the field, made her remove salwar and forcibly committed rape upon her. As a result of scuffle bangles of prosecutrix were broken; she had also received injuries on her hands and abrasions on her breast, there were injuries all over her body including her buttocks. That after some time her younger sister entered to that place and on hearing cries rushed back to her house and brought her father and her sister's husband by name Prashant. They had caught hold of the appellant and took him to the village; thereafter they decided to lodge a complaint as per Exh.26; proforma along with complaint Exh.27 by the police. It appears that in the course of evidence she had also identified her knicker and salwar which were worn by her at the time of incident which were seized under Panchanama Exh.28. She had also identified her bangles pieces which were collected by the police form the spot during seizure panchanama. In the course of her cross-examination it was suggested to her that when she was proceeding towards to nature's call, the accused was standing at the Pan stall nobody else was standing with him; as also that there was moonlight at that time and the fact that people used to go to attend nature's call in the field where the incident took place as also the fact that the place of incident was not visible form the pan shop. Learned Advocate relied upon the omission of the prosecutrix to the effect that there was no mention in her complaint to the police that the accused lifted her to other part of the field. Except this omission which appears minor as far as the entire evidence is concerned, no material contradiction or material omission appears to have been brought on record by means of cross-examination. The medical evidence as deposed by Dr. Abhilasha Behere (PW-2) indicated that prosecutrix was examined by her on the same day on 30th March, 2007, during night time and she had found the following injuries on the body of the prosecutrix :

1) Contusion on chin on right side, size 2 c.m. x 2 cm;

2) Pressure abrasion on forehead, size 1 c.m. x 1 c.m. on right side;

3) Abrasion on right side of neck, size 1 c.m. x 1 cm;

4) Pressure abrasion on both elbows, size 3 c.m. x 3 c.m.;

5) Multiple contusion on right breasts approximately size 1 c.m. x 1 c.m.;

6) Multiple contusion on left breast, approximately size 2 c.m. x 2 c.m.;

7) contusion on both gluteal (hi) region transveresly about size 6 c.m. x 10 c.m.;

8) Contusion on thigh, size 2 c.m. x 2 c.m. on inner aspect;

9) Hymenal rupture present in centre as well as posteriorly;

10) Surrounding area of odematous (swollen). No fresh bleeding present;

11) Whitish secretion present in vaginal passage, Vaginal swab was collected and slide was taken.

According to PW-2 all the above-said injuries were fresh including hymenal tear. Thus, certificate Exh.38 was issued by her. There is no suggestion to the prosecutrix that sexual intercourse was done with her consent. In order to corroborate the evidence of the prosecutrix, the prosecution also relied upon evidence of Dharmaji (father of the prosecutrix) (PW-3) who along with Prashant (who is son-in-law of Dharmaji), went accompanied by Archana, when Archana informed them that prosecutrix was crying in the field of Pendor; they rushed to the place. They saw the appellant as well as prosecutrix putting on their respective clothes and prosecutrix had narrated the incident of forcible sexual inter-course committed with her. Thereafter, the appellant was brought to the village and then complaint was lodged with the police at Mul Police Station. Thus, it appears a unique case where father of the prosecutrix had rushed to the spot and prosecutrix had immediately narrated about the incident of forcible sexual intercourse upon her while the offender was also found on the same spot. The prosecution also relied upon the evidence of Investigating Officers/police-men and panch witness in whose presence Panchanama (Exh.59) was drawn about the spot of incident. The appellant in the course of his statement made under section 313, Cr.P.C. contended that due to enmity between his family and family of the victim, the false complaint has been lodged against him while denying the prosecution case being false. This defence to my mind, appears too far-fetched and not acceptable.

7. The contention of the learned Advocate that there was absence of semen on the clothes of the prosecutrix, by itself, would not render the entire prosecution case doubtful as observed in Prithi Chand Vs. State of Himachal Pradesh reported in AIR 1989 SC 701. In para no.10 the Apex Court observed that mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case. Another contention of the learned Advocate for the appellant of the sister of the prosecutrix - Archana ought to have been examined as she was material witness, this argument also could not be of much help to the defence as father of the victim who saw the appellant as well as the prosecutrix putting on their respective clothes deposed that it was his daughter Archana who had informed him about the cries of proseuctrix and he along with Prashant rushed towards the scene of offence. Dharmaji (PW 3) father of victim girl, had narrated as to how he was informed and how the offence was reported after the prosecutrix narrated to him the unfortunate incident of forcible sexual intercourse by the appellant. Thus the evidence of prosecutrix appears to have been well-corroborated by medical evidence as well as evidence of her father and the evidence given by the Investigating Officers to arrive at a sure conclusion that she was raped by the appellant.

8. Now as regards sentence to be imposed against the appellant concerned, the learned Advocate for the appellant prayed for lenient view. While according to learned APP considering the penal provisions of Section 376, IPC a minimum sentence of seven years has to be imposed against the appellant. Learned Advocate submitted that looking to the young age of the appellant, imposition of lesser sentence is called for. To my mind, merely young age of the appellant cannot be considered as special and adequate reason to award lesser sentence for offence of rape. I therefore, do not find any rational ground to interfere with the impugned judgment and also the order of sentence awarded by the trial Court.

9. In the result, the appeal is dismissed.

10. Copy of this order be sent to the Superintendent of Jail, Central Jail, Nagpur where the appellant is now put up.

Appeal dismissed.