2012 ALL MR (Cri) 1938
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.Y. GANOO, J.

Niranjan Dharma Jadhav Vs. State Of Maharashtra

Criminal Appeal No.590 of 2007

19th April, 2012

Petitioner Counsel: Mrs. B.P. JAKHADE
Respondent Counsel: Ms. G.P. MULEKAR

(A) Penal Code (1860), S.376 - Rape - Evidence and proof - Prosecution case that accused in his house committed rape on victim, a deaf and dumb girl against her wishes - Delay in filing FIR has been adequately explained - No material on record showing that there was enmity between family of victim and accused - Evidence of witnesses that victim narrated to each of them by movement of her hand as to how accused indulged in overt act cannot be discarded - Semen stains were found on half pant and blood stains were found on nicker of victim girl - Guilt of accused as regards charge under S.376 proved beyond reasonable doubt - Conviction of accused is proper. (Paras 29 to 31)

(B) Penal Code (1860), S.376 - Rape - Sentence - Accused found guilty of committing rape on victim, a deaf and dumb girl in his house - Accused took advantage of fact that victim and her family members came from depressed class of society - Accused also took advantage of fact that he was police patil and possibly thought that no complaint could be lodged against him - Order sentencing him for 10 years RI and fine of Rs.2000/- is proper - No interference. (Para 32)

JUDGMENT

JUDGMENT :- The appellant has filed this appeal so as to challenge the judgment and order dated 15th January, 2007 passed by the learned Ad-hoc District Judge-2 and Additional Sessions Judge, Raigad, Alibag (For short "the learned trial Judge) in Sessions Case No.56 of 2006. By the aforesaid judgment dated 15th January, 2007, the appellant is convicted under Section 376 of the Indian Penal Code (for short, 'IPC') and sentenced to suffer R.I. for 10 years with fine of Rs.2,000/-. It is ordered that in default of payment of fine, the appellant has to undergo R.I. for 1 month. It is also ordered that the appellant shall pay compensation of Rs.5,000/- to the victim girl.

2. The prosecution case in gist is as under :-

On 27th December, 2005 the victim girl (hereinafter referred to as the "said girl") had gone to the house of the appellant. The appellant is alleged to have committed rape on the said girl. After the incident, the said girl narrated the incident to her brother Sachin PW 4. In the evening, Pushpa PW 1 i.e. the mother of the said girl, came home after her work was over. Said girl informed Pushpa PW 1 by action as to how she was dealt with by the appellant in the morning. It is to be noted that the said girl is deaf and dumb. She is suffering from down syndrome with mild mental retardation.On learning the event which had taken place qua the said girl at the hands of appellant Pushpa PW 1 filed complaint with Mahad Taluka Police Station on 29.12.2005.

3. On the basis of the text of the complaint, crime was registered vide C.R.No.40/05 u/s. 376 (1) of the IPC against the appellant for having had sexual intercourse with the said girl against her wishes. Said F.I.R. is marked as Ex.9/C. After the lodgement of the F.I.R., investigation was carried out by Damodar Rajaram Choudhary PW 12, Police Inspector attached to Mahad Taluka Police Station. Said girl was sent for medical examination and she was examined at Civil Hospital, Alibag. About her medical examination, Dr.Ashok Madhar Ingale is examined as PW 3. Similarly Dr. Abhay Kantilal Challani PW 10 and Dr. Rajendra Yadavrao Shirsat PW 11 have been examined by the prosecution in regard to the health of the said girl.

4. Scene of offence panchanama was conducted on 31st December 2005 which is at Exhibit 28/C. Clothes of the appellant were taken charge of vide panchanama Exhibit 29. Clothes of the said girl were taken charge of vide panchanama Exhibit 30. Clothes of the appellant and the said girl were sent for chemical analysis and the reports of the Chemical Analyzer are Exhibits 55, 56, 57, and 58. Exhibit 58 is the report concerning finding of blood and the semen on the clothes of the appellant and the clothes of the said girl.

5. After the committal of the case, the learned trial Judge framed charge Exhibit 3 under section 376 of the IPC against the appellant, on 6th June 2006. The appellant pleaded not guilty and claimed to be tried.

6. In the course of trial, the prosecution examined witnesses in support of its case. Pushpa PW 1 is mother of the said girl, Mahadeo PW 2 is father of the said girl, Sachin PW 4 is brother of the said girl Mahendra PW 8 is near relative of the said girl. Chandrashekhar Chandrakant Manjrekar PW7 is the panch in whose presence the scene of offence panchanama, panchanama relating to the clothes of the appellant as well as the said girl were carried out. Ms. Poornima B. Khade PW 6 is the Head Mistress and Special Teacher in Suyog School for mentally retarded at Mangaon. Dr. Ingale PW 3 is the Medical Officer attached to the Civil Hospital, Alibag, District Raigad who had examined the said girl.

7. The Learned trial Judge, after considering the evidence on record and the points argued before him, concluded that the prosecution has proved the guilt of the appellant as regards charge under section 376 beyond reasonable doubt. He convicted the appellant under Section 376 of IPC and sentenced the appellant to suffer imprisonment and fine as per order dated 15th January 2007 as mentioned earlier.

8. The learned Advocate Smt. B. P. Jhakade appearing on behalf of appellant had taken me through the entire record and has advanced following submissions in support of her contention that the learned trial Judge committed an error in appreciating the evidence and wrongly convicted the appellant under section 376 of the IPC.

9. Learned Advocate Smt. Jhakade submitted that the prosecution claims that the incident took place in the morning of 27th December 2005 and that the F.I.R. is filed by Pushpa PW 1 on 29th December 2005. She submitted that there has been delay in filing F.I.R. and that is how a doubt should be raised about the veracity of the entire incident put up by the prosecution.

10. Learned Advocate Smt. Jhakade had further submitted that if one considers the cross-examination conducted on behalf of the appellant, the evidence on record would show that according to the prosecution the incident had taken place in the house of appellant. She submitted that the house of the appellant is in the midst of village Gothe Budruk and in such a case it was quite possible that there could be some eye witness to the incident. She submitted that the prosecution has not examined any member of the public or any person who was residing near the house of the appellant and that all the persons examined by the prosecution are interested witnesses viz. parents of the said girl, brother of the said girl and Mahendra who is also a near relative of the said girl. Learned Advocate Smt. Jhakade therefore submitted that the evidence of the relatives of the said girl will have to be treated as evidence of the interested witnesses and their evidence will have to be discarded.

11. It was argued by Learned Advocate Smt. Jhakade for the appellant that the said girl was deaf and dumb and was partially mentally retarded. She submitted that prosecution witnesses claim that the said girl had narrated the incident to the various prosecution witnesses by actions. She submitted that the prosecution witnesses must not have understood the purport of the actions made by the said girl and therefore there is every likelihood that actions of the said girl are not properly interpreted or misunderstood and a false FIR is filed against the present appellant. Learned Advocate Smt. Jhakade had also submitted that medical report at Exhibit 15 produced by Dr. Ingale, Medical Officer attached to the Civil Hospital at Alibag indicates that the said girl is capable of sexual intercourse and there was no evidence of fresh injury over vagina, introitus. She had therefore submitted that in the absence of any external injury on the person of the said girl, the case of the prosecution that the said girl was subjected to sexual assault is required to be seen with doubt.

12. Learned Advocate Smt. Jhakade had also submitted that the prosecution claims that the clothes of the appellant as well as the clothes of the said girl were taken charge of under panchanama vide Exhibit 29 and Exhibit 30 respectively. She submitted that a serious doubt is required to be raised about taking charge of the clothes of the appellant and the said girl. Learned Advocate Smt. Jhakade therefore submitted that considering the submissions advanced by her, this Court should raise a serious doubt about the entire case put up by the prosecution and that the appellant is required to be acquitted of charge under section 376 of IPC.

13. Learned Advocate Mrs. Mulekar appearing on behalf of State had in turn taken me through the record to support the impugned judgment.

14. Learned Advocate Mrs. Mulekar submitted that Sachin PW 4 has narrated in examination-in-chief that little prior to the incident in question, said girl had visited the house of the appellant at about 1.30 p.m. She pointed out that Sachin PW 4 had gone to the house of the appellant to call the said girl for meal and that the door of the house of the appellant was found closed and he had heard the sound like ..U ..U ..U which, in turn, was a sound made by the said girl as she was weeping. She pointed out that Sachin PW 4 called the said girl and the appellant opened the door and made said girl to leave the house. She further pointed out that soon thereafter the said girl narrated to Sachin PW 4 the event which had taken place in the house of the appellant viz. the appellant having sexual intercourse with the said girl against her wishes.

15. Learned Advocate Mrs. Mulekar had submitted that in the evening, mother of the said girl by name Pushpa PW 3 came back to the house and the incident was narrated to her. She also pointed out from evidence of Mahendra PW8 and Mahadeo PW 2 how the said girl narrated to them about the incident. Learned Advocate Mrs. Mulekar further submitted that looking to the status Pushpa PW 1 and the said girl, it was quite natural that it is only after gathering some courage, compliant came to be filed against the appellant who was a Police Patil. She therefore submitted that sufficient explanation has been given by the prosecution witnesses as to how the F.I.R. came to be filed on 29th December 2005. She had submitted that the said explanation should be accepted and the argument advanced by the learned Advocate for the appellant on the question of delay in filing of the F.I.R. on 29th December 2005 should be rejected.

16. Learned Advocate Mrs. Mulekar submitted that it is true that there is no eye witness to the actual incident. She however submitted that evidence of Sachin PW 4 shows that the said girl visited the house of the appellant and at the time when Sachin PW 4 had gone to call the said girl, said girl and the appellant were in the house and when Sachin PW 4 called the said girl to come for meal, the appellant opened the door and asked the said girl to leave the house. According to Learned Advocate Mrs. Mulekar, the finding of the said girl alone in the house of the said appellant and the said girl narrating the incident to Sachin PW 4 soon after she had left the house of the appellant is a strong circumstance against the appellant. She therefore submitted that even though there is no eye witness to the incident in question, the aforesaid circumstance clearly supports the case of the prosecution that it is the appellant who had indulged in the act complained against him qua the said girl.

17. Learned Advocate Mrs. Mulekar had submitted that the said girl had narrated the overt acts alleged against the appellant to Pushapa PW 1, Mahadeo PW 2, Sachin PW 4 and Mahendra PW 8. She submitted that the evidence given by all these persons clearly indicate that there is unanimity in their word as regards the overt acts alleged against the appellant. She pointed out that each and every witness has narrated what was told to each of them by the said girl. She submitted that reading of the said evidence would clearly go to show that the appellant took the advantage of the situation that the said girl was in his house and that he indulged in the act of having sexual intercourse with the said girl against her wishes and that the appellant committed offence punishable under section 376 of the IPC. She had therefore submitted that the evidence given by the near relatives in no uncertain terms proves that the appellant had sexually abused the said girl thereby committing an offence punishable under section 376 of IPC.

18. Learned Advocate Mrs. Mulekar had submitted that the services of Ms. Poornima B. Khade PW 6 were availed of by the investigating agency as well as by the Court for the purposes of knowing what exactly transpired in the course of the incident. She had taken me through the evidence of Ms. Poornima Khade PW 6 who was, at the relevant time, as Head Mistress and as Special Teacher in Suyog School for mentally retarded students at Mangaon. Learned Advocate Mrs. Mulekar had read to the Court the evidence of Ms. Poornima Khade PW 6. I have perused her evidence. Learned Advocate Mrs. Mulekar pointed out that Ms. Poornima Khade PW 6 had good experience of knowing the manner in which one can communicate with persons like the said girl who was deaf and dumb and partially mentally retarded. Learned Advocate Mrs. Mulekar, by reading evidence of Ms. Poornima Khade PW 6 pointed out as to how Ms. Poornima Khade PW 6 has acquired experience to have a dialogue with the persons who are deaf and dumb or partially retarded. Learned Advocate Mrs. Mulekar pointed out that learned trial Judge had put the said girl in the witness box and questions were asked by Ms. Poornima Khade PW 6 to the said girl by making actions and the said girl had answered the questions which unequivocally indicate that the said appellant had sexual intercourse with the said girl against her wishes. Learned Advocate Mrs. Mulekar had submitted that Ms.Poornima Khade PW 6 is an independent witness and she had no cause to depose against the present appellant and that is how her evidence will have to be treated as evidence of the independent witness and the said evidence is required to be accepted. Learned Advocate Mrs. Mulekar submitted that the reading of evidence of Ms. Poornima Khade PW 6 also indicates that the prosecution has proved the allegations levelled against the appellant.

19. Learned Advocate Mrs. Mulekar drew my attention to question put to said girl through Ms. Poornima Khade PW 6 by the appellant's Advocate in the cross-examination and the answers given to it. The said question and answer are as follows.

Q. On the day of incident you were at the house of Vikas mama throughout the day?

Ans. Yes (witness further said that from the house of Vikas mama she went to the house of accused.)

20. My attention was drawn to this portion of the evidence of the said girl recorded through Ms.Poornima Khade PW 6. Learned Advocate Mrs. Mulekar therefore submitted that the case of the prosecution that the said girl had visited house of the appellant is fully made out.

21. Learned Advocate Mrs. Mulekar had therefore submitted that the evidence placed by the prosecution through the witnesses Pushapa PW 1, Mahadeo PW 2, Sachin PW 4 and Mahendra PW 8 Ms. Poornima Khade PW 6 clearly proves the case of the prosecution against the appellant viz. the appellant had sexual intercourse with the said girl against her wish.

22. Learned Advocate Mrs. Mulekar had read to the Court the medical evidence rendered by Dr. Ingale PW 3. She submitted that it is true that the medical report is silent about any fresh injury. She submitted that merely because there is no external injury on the person of the said girl, the oral testimonies of various witnesses who unequivocally mention about overt act committed by the appellant qua the said girl cannot be disregarded. She further submitted that the said girl was taken to the hospital on 30th December 2005 i.e. 3 days after the incident. She submitted that though no external injuries are found on the person of the said girl, still the hymen of the said girl was not intact. According to her, this factor goes against the interest of the appellant. Mrs. Mulekar submitted that evidence given by various persons mentioned aforesaid was rightly accepted by the learned trial Judge who held that the appellant is guilty under section 376 of the IPC.

23. Learned Advocate Mrs. Mulekar had drawn my attention to the panchanama under which the clothes of the appellant and the said girl were taken charge of. She submitted that the said panchanama was carried out in the appropriate manner and there is no reason to disbelieve the contents of the said panchanama. She submitted that the shirt and half pant were produced by the appellant as the clothes which were on his person on 27th December 2005 and on the half pant which was taken charge of under panchanama Exhibit 29 semen stains are found. She also pointed out that nicker worn by the said girl on 27th December 2005 was taken charge of under panchanama Exhibit 30 and the said nicker was found to be stained with blood as certified by the report of the Chemical Analyzer. Learned Advocate Mrs. Mulekar had therefore submitted that the report of the Chemical Analyzer also proves the case of the prosecution on account of finding of semen stains on the half pant of the appellant and the blood stains on the nicker of the said girl.

24. Learned Advocate Mrs. Mulekar had therefore submitted that the learned trial Judge was right in convicting the appellant under section 376 of the IPC. She pointed out that the learned trial Judge had considered the entire evidence which was placed before him in proper perspective and had rightly convicted the appellant under section 376 of the IPC.

25. Learned Advocate Mrs. Mulekar had submitted that the status of the present appellant as a Police Patil is very much relevant and she submitted that the learned trial Judge has considered the same while deciding the case before him.

26. Learned Advocate Mrs. Jakhade appearing on behalf of the appellant had submitted that this Court should take lenient view and this Court should reduce the quantum of sentence imposed upon the appellant.

27. Learned Advocate Mrs. Mulekar had in reply submitted that the learned trial Judge has rightly sentenced the appellant to undergo R.I. for 10 years with orders of fine. Learned Advocate Mrs. Mulekar had submitted that the appellant was a Police Patil and as per the provisions of section 6 clause 7 of Maharashtra Village Police Act, 1967, it was the duty of the appellant to prevent within the limits of his village, commission of offence/nuisance and detect and bring offences to justice. Learned Advocate Mrs. Mulekar submitted that the appellant who was Police Patil did not adhere to the duties cast upon him by the Maharashtra Village Police Act, 1967. She submitted that the appellant took advantage of the fact that the said girl was deaf and dumb and partially mentally retarded. She submitted that the appellant took advantage of the disability of the said girl as also his status as Police Patil and indulged in the acts proved against him. She further submitted that the evidence of Pushpa PW 1 and Mahadeo PW 2 clearly indicates that the family of Pushpa PW 1, including the said girl, came from depressed class of society and the appellant took advantage of the said fact and indulged in the overt act. She therefore submitted that no interference is required so far as the quantum of punishment. She had therefore submitted that the appeal should be dismissed.

28. I have gone through the entire record with the assistance of the learned Advocates on both sides. It is true that the F.I.R. came to be lodged on 29th December 2005. However the prosecution has been able to give explanation for such late filing of F.I.R. through Pushpa PW 1. Looking to the fact that Pushpa PW 1 and her family members were from depressed class of society, surely they had to gather courage to go to the police station and file complaint, particularly because the appellant was the Police Patil. Delay in filing F.I.R. has been adequately explained and I see no reason to discard the case of the prosecution on that ground.

29. It is true that no eye witness is cited on behalf of the prosecution. In my view, considering the fact that the incident had taken place within four walls i.e. the house of the appellant, getting of eye witness for the overt act against the appellant was impossible. One will have to accept the evidence of Sachin PW 4 who has stated as to how the said girl went to the house of the appellant, as to how he went to the house of the appellant to call her and as to how the appellant opened the door and made the said girl to leave the said house, as to how the said girl was found weeping. In my view, the evidence of Sachin PW 4 clearly indicates that after the said girl came out of the house of appellant, she had made grievance about overt act of the appellant. The prosecution has examined Pushpa PW 1, Mahadeo PW 2, Sachin PW 4 and Mahendra PW 8 as the near relatives. Their evidence clearly indicates that the said girl had narrated each of these persons the event which took place, how the appellant indulged in the overt act. It is true that the said girl is deaf and dumb. These witnesses have stated that the said girl had narrated incident to each of them by movement of her hands. It is to be noted that all the aforesaid witnesses are near relatives of the said girl and the said witnesses must be entering into dialogue with the said girl by movement of hands only as the said girl was deaf and dumb. There is no reason to disbelieve the evidence of these witnesses merely because they happened to be the relatives of the said girl. In the entire evidence, no material is brought on record by the appellant to show that there was enmity between family of Pushpa PW 1 and the said appellant. In fact Sachin PW 4 has stated in his evidence that the said girl used to visit the house of the appellant on many occasions. For the reasons mentioned aforesaid, I am not inclined to discard the evidence of these witnesses. In my view, the learned trial Judge has rightly appreciated the evidence of these witnesses and has held that the appellant had sexual intercourse with the said girl.

30. The prosecution has examined Ms. Poornima Khade PW 6. This witness was the Head Mistress and Special Teacher in Suyog School for mentally retarded at Mangaon. Her evidence clearly indicates that she was expert in having communication with deaf and dumb persons. Her evidence also goes to indicate that she could know from the said girl as to how the said girl was dealt with by the appellant. The learned trial Judge had put the said girl in the witness box. Questions were asked to the said girl through said Ms. Poornima Khade PW 6 by the skill possessed by Ms. Poornima Khade PW 6. Answers received by Ms. Poornima Khade PW 6 were immediately recorded. This would go to show that in the presence of the Court, Mrs. Poornima Khade PW 6 could enter into communication with the said girl and answers given were recorded immediately in the presence of the learned Judge. In my view, the learned trial Judge adopted proper procedure for recording evidence of the person who was deaf and dumb. The appellant has conducted cross-examination of said girl through Ms. Poornima Khade PW 6. It is seen that no prejudice is caused to the appellant on that count. Having perused the evidence of Ms. Poornima Khade PW 6, I accept the same and her evidence supports the case of the prosecution. I have considered the submissions advanced by both the sides on the questions of seizure of clothes of the appellant and the said girl. I find no difficulty in accepting the evidence of the prosecution placed on record through Chandrashekhar Manjrekar (PW 7) who had acted as a panch for the purposes of taking charge of clothes of the appellant and the said girl. I have already indicated that semen stains were found on the half pant and blood stains were found on the nicker of the said girl. The Chemical Analyzer at Exhibit 58 speaks of the aforesaid observation. There is no reason to disbelieve this report. In the wake of the report of Exhibit 58 it is clear that blood stains were found on the nicker of the said girl. It is not the case of the appellant that said blood stains may have appeared on account of some other reason. Hence, only conclusion which can be drawn is that the said blood appeared on the nicker of the said girl on account of the overt act committed by the appellant.

31. For the reasons mentioned aforesaid, I accept the evidence of the prosecution witnesses and I accept the finding given by the learned trial Judge that the prosecution has proved the guilt of the appellant as regards charge under Section 376 of IPC beyond reasonable doubt. For the reasons mentioned aforesaid I am inclined to confirm the order of conviction passed against the appellant.

32. The arguments advanced by learned Advocate Mrs.Jakhade to seek leniency on the question of punishment cannot be accepted. Ms. Mulekar was right in pointing out the fact that the appellant was Police Patil. She was also right in pointing out the duties of the Police Patil and it is noticed that the appellant has in fact not complied with the obligations caste upon him as a Police Patil. The appellant took advantage of the fact that Pushpa PW 1 and her family members including the said girl came from a depressed class of society. He also took the advantage of the fact that he was Police Patil. He possibly thought that no complaint would be lodged against him as Pushpa PW 1 or her near relatives would be scared of lodging complaint.

33. In my view, the learned trial Judge has rightly considered the question of punishment and has imposed appropriate quantum of punishment. No interference is required in the said quantum.

34. For the reasons mentioned aforesaid, the appeal filed by the present appellant is required to be dismissed. Hence, the following order is passed to dispose of the appeal :

ORDER

i. The appeal is dismissed.

Appeal dismissed.